Clause 1

Political Parties and Elections Bill – in a Public Bill Committee at 4:30 pm on 11 November 2008.

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Compliance with controls imposed by the 2000 Acts etc

Photo of Frank Cook Frank Cook Labour, Stockton North

With this it will be convenient to discuss amendment

No. 38, in clause 1, page 1, line 16, at end add—

‘(4) In the 2000 Act section 13 (which makes provision about the promotion of the electoral and democratic system by the Electoral Commission) is repealed.’.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

We move to clause 1, which deals with the functions of the Electoral Commission. In fact, we are moving back to clause 1. There is always something about moving backwards in Bills. I should like to put it on record that we have found it difficult to prepare comprehensively for these clauses. They are the most technical clauses in the Bill, and it would have been helpful to have had more time. As a result, amendments have been rushed with little or no time for consultation. That includes the Government amendments that we received on Friday. Although it is good to have seen the amendments—and I thank the Minister for having put some of them through—we have not been able to consult on them for obvious reasons. Frankly, that is not the best way to make law. I hope that lessons will be learned from the experience that we have had in this Committee, although that is unlikely to be the case.

Photo of Andrew Tyrie Andrew Tyrie Conservative, Chichester

I am particularly perturbed that we have not had time to prepare for this Bill. The language has always been consensual. We will do this by working together. I cannot understand the mad rush. We are talking about not just legislation, but constitutional legislation at that. I wonder whether my hon. Friend wants to comment on that.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

Given that, one way or another, whether here or in the other place, the Bill is invariably going to stretch into the next Session, I agree with my hon. Friend about the rush. However, that is the situation that we face.

Let me move on to amendments Nos. 79 and 38. We generally support the aim of clause 1 and believe that it should be a tool for change. There is a need to refocus the commission on its core duties as a regulator. That is generally recognised by pretty much everyone, not least by the commission itself. The question is, how are we going to do that? Given the known weakness of the commission in its various functions, does the Bill go far enough in redefining those functions? The Bill gives the commission lots of new investigatory powers, for instance, but will it actually use them in the exercise of its functions, given the limited redefinition in the Bill? Do the functions need further focus than has been provided?

Let us examine the redefinition. Clause 1 will delete the original wording of section 145(1) of PPERA, which states:

The Commission shall have the general function of monitoring compliance” and replace it with the slightly more proactive wording:

“shall have the function of monitoring, and taking such steps as they consider appropriate with a view to securing, compliance”.

That emphasis on the proactive role of the commission is to be encouraged, as the bulk of the reports to date have recommended a need for it to act more courageously and to shrug off what some have seen as a passive attitude. In essence, clause 1 provides that in addition to its existing function of monitoring compliance with the various requirements, the commission shall also have the function of taking such steps as it considers appropriate to secure compliance with those requirements.

The aim of amendment No. 79 is to tighten the wording of the clause, to insert the word “sole” before describing the function of the Electoral Commission. The aim is that first, we will not be back here again in six years, with all the associated costs, to review the scope of the commission’s duties because it has been able to take the path of least difficulty and resume a passive role and, secondly, to aid the commission and give it a clearer indication of what Parliament thinks its role should be. It may take time for the commission to readjust to its new role, so I propose a clear statutory signposting so that it can have the courage of its convictions to fulfil its mentoring and enforcement role, without the need to consider the wider issues for the electoral system. I hope that the commission and the Government see this is an enabling remit for the commission, rather than a restricting one.

Amendment No. 38 seeks to clarify the position. Given that the Bill seeks to refocus the commission’s core duties on to its role as a regulatory body, we need to do away with a particular section in PPERA as it will, in effect, become all but redundant. To leave it on the statute books will serve no function other than to confuse the commission and those studying the legislation.

Section 13 of PPERA places a duty on the commission to promote awareness of the electoral and democratic systems. As my hon. Friend for Chichester so rightly pointed out in his submission to the Committee on Standards in Public Life review, this is not a matter for the commission; rather it is a matter for political parties. The amendment is designed to tie up the loose ends so that there is no room for future confusion.

Last night the Electoral Commission commented on this issue, and it is worth putting its position on the record. It said:

“The Commission does not support amendment 38 which would remove our duty to promote public awareness of electoral systems and related matters. There is a strong case for ensuring that people get clear and reliable information about how to register to vote, and how to take part in elections, and for this information to be provided by the independent Electoral Commission.

Although the Committee on Standards in Public Life (CSPL), in its eleventh report, recommended that the Commission should no longer retain a wider statutory duty to encourage participation in the democratic process, it also recommended that the Commission should ‘retain a clearly defined statutory duty for the provision of public information on the mechanics of the electoral process including electoral registration procedures, how to vote and explaining any changes to the electoral system.’

The Commission no longer encourages participation in the broader sense discussed by the CSPL. We agree with the Government’s response to the CSPL on the point that ‘informing the public on the mechanics of the electoral system, including the registration process, is key to maintaining a strong democracy and we agree that the Electoral Commission should continue to fulfil this role.’”

While I can understand the Electoral Commission’s position, it leads to a wider issue, namely: where is the line going to be drawn on what constitutes strict provision of public information, and how much of its time should be spent on undertaking that? Given the well recorded poor record of the Electoral Commission on that aspect, the Bill should be more specific. That is why I head back towards the measures contained in my amendments.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs 4:45, 11 November 2008

I have some sympathy with the overall aim of the amendments, although rather less sympathy with the precise terms in which they are drafted. The overall aim will be recognised by anyone who has had much to do with the Electoral Commission over the past few years, and is that of producing a commission that is more focused on its core tasks—the monitoring and regulation of political parties and the administration of elections. It has not been all that successful at its more general role of promoting democracy and participation and, on the whole, that has drawn attention and resources away from its core tasks.

The problem with the amendments is what they would do, and that is a separate question which we should consider in detail. As the hon. Member for Huntingdon explained, amendment No. 79 would insert the word “sole” into the legislation. However, he seems to have forgotten what it would insert that word into—section 145 of PPERA. After the words in clause 1, that section refers immediately to

“the restrictions and other requirements imposed by or by virtue of Parts III to VII.”

In other words, it misses out the requirements in parts I and II of PPERA, which unfortunately are rather important. The hon. Gentleman’s amendment would rule out a role for the commission in those two areas. Part I includes provisions on a supervised role regarding boundaries in England, and part II is about the registration of political parties. The hon. Gentleman’s amendment would leave us without any body responsible for the registration of political parties; I cannot support it.

There is more to amendment No. 38 than there is to amendment No. 79, but there is a difficulty. In its response, the commission said that it still wants to have the power to give information about how the electoral system works. That is the proper function of the commission and is part of the administration of elections. When there are different electoral systems—the European Parliament system, for example—the commission has a role in ensuring that the explanation for the system offered to voters is not only clear but fair, and that it is not biased in the direction of a particular party or group of parties. I agree that that role should remain, but that does not mean that the commission should also retain its broader position, which has had the effect of taking away focus from its core role.

As it now stands, section 13(1)(a) of PPERA details the commission’s role in explaining the electoral system, and is worthy of retention. However, according to section 13(1)(b), the commission is supposed to promote awareness of

“current systems of local government and national government in the United Kingdom and any pending such systems”, while section 13(1)(c) states that the commission should promote public awareness of

“the institutions of the European Union”.

It seems to me surprising that the commission should have such a role.

Although I am sympathetic to the overall aim of the hon. Gentleman’s amendment and support its effect in those parts, overall it goes slightly too far. Nevertheless, I would be interested to hear the Minister’s response to the issues I have raised.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

I am grateful for the spirit of the contributions to the debate from the hon. Members for Huntingdon and for Cambridge. We are broadly in agreement about where we want to go. Before I regretfully have to resist the amendment, I want to address the matter of lateness raised by the hon. Members for Chichester and for Huntingdon. Some amendments were tabled late, and we very much wish that that were not so. The team of excellent and extremely hard-working civil servants who worked late into the night to draft them certainly would have wished to have been able to deliver them earlier. However, everyone recognises that it is important to take account of the new Public Bill procedure, all the evidence that was received and the recent contributions to the debate. That is why it was not possible to table amendments sooner. I realise that issues are involved, but I mean what I have said on many occasions. We want to achieve consensus as far as possible, and it is important that we do so.

I remind the Committee that the White Paper on funding was published on 16 June and that the Bill itself was published on 17 July, so there has been a reasonable passage of time for members of the Committee to get their heads round a lot of the issues.

Photo of Andrew Tyrie Andrew Tyrie Conservative, Chichester

Does the Minister really think that it is a consensual and reasonable approach to expect Opposition Members to absorb amendments that were tabled on a Friday for debate the following Tuesday, when the whole purpose of the process in which we are engaged is to attempt, as far as we can, a constitutional change with which all parties can agree? Might it not have been possible to re-timetable matters so that we had a week’s interval between the Public Bill Committee-style evidence and the Standing Committee procedure? If we had had that, we would not have had such difficulties.

While we are at it, what on earth is the Government’s Gadarene rush about in trying to get the Bill on to the statute book so quickly?

Photo of Frank Cook Frank Cook Labour, Stockton North

Order. I can understand frustrations being expressed by all Members. I feel them frequently myself, but we are talking about specific amendments. Along with amendment No. 38, we are discussing amendment No. 79 to clause 1, not the processes regarding why it took so long in the past to draft amendments, or why it might take so long in the future. Can we address the amendments, please?

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

Of course, Mr. Cook. There is a general consensus, including from the commission, that its role should be to withdraw from the wider role of encouraging democratic engagement, and therefore the Government have accepted the recommendations of the Committee on Standards in Public Life that it should no longer have that role. We have also accepted its recommendation that the Government should retain a clearly defined statutory role for the provision of public information on the mechanics of the electoral process, including election registration procedures, how to vote and an explanation of changes to the electoral system.

As we said in our response, the Government believe in informing the public of the mechanics of the electoral system, including the registration process. We have already had some exchanges in Committee about the importance of maintaining the register. We know that such practice is key to maintaining a strong democracy. Repealing section 13 of PPERA would prevent the commission from performing that vital function. Amendment No. 79, which would amend clause 1 to limit the commission’s role to

“monitoring, and taking such steps as they consider appropriate with a view to securing, compliance with” the controls imposed by the 2000 Act, would actually create a problem. It is clear that everyone agrees how important it is that the commission focus anew on its monitoring functions, and that it has appropriate powers to perform them effectively. However, the amendment goes too far. It would prevent the commission from performing any of its other legitimate functions, as set out in PPERA. The hon. Member for Cambridge has already alluded to that.

We have already said that we accept that the commission should no longer have a role in promoting that wider participation. We do not believe any legislative changes are required to implement that. Furthermore, we have already accepted the recommendations of the Committee on Standards in Public Life that the Electoral Commission should no longer have any involvement in electoral boundary matters and that the provision in PPERA that allows for the transfer of boundary setting functions to the commission should be repealed. We therefore believe that the amendments are not necessary and that they would prevent the commission from carrying out some of its remaining vital functions. I therefore hope that the hon. Member for Huntingdon will withdraw his amendment.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General 5:00, 11 November 2008

The hon. Member for Cambridge explained the shortcomings of amendment No. 79 and I accept much of what he said. I think he understood that the underlying point is that we need to be satisfied with the focus of the commission. However, that is more of a matter for a stand part debate and I will come back to it then.

Again, I agree with the Minister that the drafting of the amendments is perhaps not up to the job, but I do not agree that the concept behind the amendments is wrong, which is, I think, what he went on to say. We do not think that the focus is right and so, although I will not press the amendments to a Division, we will consider the matter again when we move forward to the next stage of the Bill.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Nick Ainger Nick Ainger Labour, Carmarthen West and South Pembrokeshire

I beg to move amendment No. 2, in clause 1, page 1, line 10, leave out ‘may’ and insert ‘shall’.

Photo of Frank Cook Frank Cook Labour, Stockton North

With this it will be convenient to discuss amendment No. 81, in clause 1, page 1, line 13, leave out ‘, or is sufficient’.

Photo of Nick Ainger Nick Ainger Labour, Carmarthen West and South Pembrokeshire

May I say, Mr. Cook, how pleased I am to be serving under your chairmanship again? The purpose of the amendment is to ensure that the Electoral Commission publish clear guidance for political parties, donors and those regulated by the 2000 Act. I note that Government amendment No. 125 uses the word “shall” in relation to other guidance that is to be published by the commission. I am surprised that the Government have not used the word “shall” in the clause.

This morning, we heard the words “complexity” and “complexities” used on a number of occasions about the Bill and the 2000 Act. Bearing it in mind that these are complex and important issues, particularly for the individuals and parties that might be affected by monitoring and regulation as a result of the 2000 Act and this legislation, clear guidance should be provided by the Electoral Commission so that people can refer to it and establish whether they are complying with the regulation and what they should do. It is interesting that clause 1 sets out the terms of reference for that guidance, which is extremely helpful:

“(a) what it is necessary, or is sufficient, to do (or avoid doing) in order to comply with the requirement;

(b) what it is desirable to do (or avoid doing) in view of the purpose of the requirement.”

In the Bill, we say that there should be clear guidance, but we do not say there shall be publication of that guidance. I would be grateful if my right hon. Friend the Minister explained why, in this part of the Bill, the Government say that the Electoral Commission “may” publish guidance, but elsewhere that it “shall” do so.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

We have added our names to those of the hon. Member for Carmarthen, West and South Pembrokeshire and others. Clause 1 would insert a new subsection (6) into the PPERA, requiring the commission to publish guidance on how to comply with the provisions of the Bill. That is recognition by the Government that the Bill introduces complex and administratively burdensome duties, which would have to be implemented by those at the lowest level of the party structure, who are often volunteers and have little or no legal training. The commission will need to produce guidance to assist parties at the local and national levels to bring their practices in line with the Bill. That will be a considerable undertaking for the commission in the aftermath of the Bill’s enactment. Failure to produce guidance in a timely and concise fashion would have potentially wide-ranging and detrimental impacts on both the commission and those who must implement the Bill’s provisions.

Peter Wardle, the chief executive of the commission, highlighted the commission’s own emphasis on the need for guidance in the second sitting of the Committee last week:

“There are lots of questions about the Bill at the moment. We are already beginning to try to work out what our guidance would look like and we would hope to have that guidance in the public domain by January. I do not think that it is possible to get anything useful and in detail in the public domain before then.”——[Official Report, Political Parties and Elections Public Bill Committee, 6 November 2008; c. 47, Q113.]

Can the Minister give us some idea of the projected cost to the commission of producing the guidance? Will the commission be given any additional financial or personnel resources to handle the increased work load as a result of the legislation being passed? Have the Government consulted with the commission on its needs? If so, could the Minister circulate a copy of the commission’s response?

The aim of amendment No. 2 is, again, to give a clear indication to the commission about the focus of its remit. The amendment looks to reverse some ambiguity in the Bill. That the commission

“may prepare and publish guidance” implies a level of discretion. We wish to ensure that guidance is given the priority it needs and that the commission is compelled to issue it. The publication of guidance should form a key part of the commission’s role in the coming years, while the Bill—when enacted—and its requirements are bedding down. That would not only assist parties and their officials in complying; it would also go a long way to rectifying the commission’s damaged reputation in the eyes of many.

On amendment No. 81, likewise, we find the inclusion of the phrase “or is sufficient” to be strangely confusing and ambiguous. What is “necessary” and “sufficient” should be one and the same. If something is sufficient, but not necessary, we are possibly imposing a split level into the test, which is surely not the best way forward. I shall be interested to hear what the Minister considers necessary and what he considers sufficient. Given the complexity of the Bill’s schedules and the clear possibility of confusion, we as legislators should be doing as much as humanly possible to ensure that we are clear about what must be done to comply with the law. As I noted, the commission’s guidance will prove invaluable when parties go about implementing the Bill’s provisions. Guidance should be published as quickly as possible, setting out clearly what needs to be done. Let us deal in black and white as much as possible. The phrase “or is sufficient” introduces grey areas, which are the last things that we or the commission need. We suggest the phrase’s deletion.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

I, too, support amendment No. 2, and like the hon. Member for Carmarthen, West and South Pembrokeshire, I look forward to an explanation from the Government as to why, in this part of the Bill, the commission is given a power to give guidance, whereas elsewhere it is given a duty. The commission’s response implies that a duty here would produce a vast amount of work, which leads to the question of why that is not the commission’s view of its existing obligations under the law. There is a link between this and the previous debate—if the commission is being asked to focus attention on its regulatory activities rather more than in the past, that should free up resources from the other functions to devote to this area.

However, I cannot support amendment No. 81, which, if anything, is the wrong way around. The difference between “necessary” and “sufficient” is as follows. If a party official trying to comply with the law is told that various things are “necessary”, they are told that they have to do them, but not that that is enough to comply. A lot of things might be necessary, but not add up to enough to comply with the law. If they are told what is “sufficient” to comply, that is much better. It gives them a safe harbour, because if they comply with the guidance, they are okay and know that they have not broken the law. It seems to me far more important to have guidance on “sufficient” conditions for compliance than on “necessary” conditions. If the hon. Member for Huntingdon wanted to remove part of the clause, he would have done better to remove the word “necessary”.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

I will address some of the detailed issues that have been raised in a moment. First, I shall explain briefly why we will have to resist both amendments.

Amendment No. 2 is unnecessary as it would be unhelpful to have in primary legislation such a hard requirement on the commission. We have every confidence that the commission will produce the guidance as necessary, and I am aware that it has already started work on it. However, in practice it would be difficult for a statutory requirement that it must produce guidance to work. What would constitute the guidance having been produced? Who would judge that it was adequate and that the commission had fulfilled its statutory obligation? It seems to me that the amendment would open it up to judicial review, which can hardly be a sensible recourse given what we are trying to achieve in the clause. A permissive power for the commission to produce guidance is sufficient. It will be able to keep the guidance updated and refreshed and focused on key areas of uncertainty. Amending the Bill in the way sought in the amendment would not add anything.

Amendment No. 81 would limit the commission’s guidance to setting out what it is necessary or desirable to do, or avoid doing, to comply with the requirements of the 2000 Act. We believe that the clause will allow the commission flexibility to decide what information it should set out in its guidance to help regulated individuals to comply with regulatory requirements. The amendment would unnecessarily restrict the commission’s flexibility.

The clause will allow the commission to produce a wide range of guidance, including best practice guidance and pro formas that parties can complete if they wish to comply with the requirements on them to report to the commission. We believe that that flexibility will help Members and other regulated persons.

Both my hon. Friend the Member for Carmarthen, West and South Pembrokeshire and the hon. Member for Cambridge asked why in some parts of the Bill we suggest that the commission should be given a power, but in others we seek to impose a duty on it. Quite simply, the difference is that the commission “shall” produce guidance on the use of investigatory powers and sanctions, but it “may” produce guidance on the requirements of the 2000 Act. That is because sanctions and powers are a much narrower issue with potentially serious consequences, and the commission must therefore explain how it intends to use them.

The requirements of PPERA are many and complex, and the Electoral Commission must be empowered to judge which aspects require explanation. Requiring guidance on every single aspect of the Bill would make it very difficult and effectively inoperable. I hope that that gives some reassurance to my hon. Friend and the hon. Gentleman about why we have adopted the distinction between the application of the power and the duty.

Photo of Nick Ainger Nick Ainger Labour, Carmarthen West and South Pembrokeshire

I am still a little puzzled. The Minister and the Electoral Commission tell us that they are producing the guidance, so why is the requirement so onerous? If it is producing the guidance, it does not seem to be too onerous for it to do so. We being told that putting “shall” instead of “may” and creating a duty would somehow be asking far too much, and would take up far too much time. Will my right hon. Friend explain that?

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice 5:15, 11 November 2008

As I was saying, the requirements of the Act to which the measure would apply are complex and various. The guidance being produced is a matter for the commission, and it is doing what it feels is appropriate. Placing a duty on it to provide guidance on every aspect of the Act would be a different matter and would be more onerous. I hope that that answer reassures my hon. Friend.

The hon. Member for Huntingdon asked whether we have consulted the Electoral Commission. The answer is yes; we consult it frequently and will continue to do so.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

There has not been any formal communication with the commission about resource requirements, but we discuss all those issues with it, and will continue to do so. I hope that I have given enough reassurance for the amendments to be withdrawn.

Photo of Nick Ainger Nick Ainger Labour, Carmarthen West and South Pembrokeshire

As I have indicated to my right hon. Friend, I am still a little puzzled. The good news is that the commission is producing guidance; that is absolutely essential. We might have to return to this issue, but I shall not press the amendment.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

Parliament is putting in place some pretty material changes here, not least in relation to the commission’s functions. The Minister has just called them complex and various, but I do not see the sense of urgency from him that this matter deserves. Electoral law has consistently fallen into abeyance in the past because of a lack of focus. That is not fair on our party workers, who will need the guidance urgently, and that is why I shall ask the Committee to divide on the amendment.

The Committee divided: Ayes 8, Noes 9.

Division number 4 Nimrod Review — Statement — Clause 1

Aye: 8 MPs

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

Political party funding and the organising of elections have been controversial in this country for centuries. One has only to look at a series of reports going back over the years to see that those perennial problems have presented challenges to the electoral  system and political parties alike throughout history. To the extent that society changes over time, so do its expectations for electoral and funding probity, and changes then follow. However, the problem has become far more acute under the present Government.

As I said on Second Reading, this is a half-hearted Bill, which is characterised more by what is missing than by our wholesale objections to its content. We are missing an opportunity to rectify the damage and add legitimacy back into the system. We are not the only ones to think that way. A key finding of the Joseph Rowntree Reform Trust was:

“Public confidence in the electoral process in the UK was the lowest in Western Europe in 1997.”

An effective electoral system and its administration must be the foundation of our democracy. For a democracy, we need elections. Those elections cannot be free and fair unless the rules governing them are fair and coherent, and those rules must be administered properly and, if necessary, enforced actively. Party funding regulations are just as important.

Given recent experience, we agree that the regulatory framework needs strengthening. The principle, set out in clause 1, that the commission is now required to both monitor and regulate compliance has long been promoted by the Conservative party, although we will need to tie down exactly what that means. We hope that it will result in the commission doing less of what it should not be doing, such as spending millions of pounds on increasing voter turnout. That is our job as politicians, not the job of the commission. As such, we in the Conservative party cautiously accept in principle some of the proposed additions to the investigatory and sanctioning powers of the Electoral Commission, although we will want to examine more closely how they will work in practice, as we will be concerned to ensure that they do not destroy donors’ willingness to participate.

Part I of PPERA contains 21 sections and two schedules that created the commission and set out its general functions. The commission was established as a corporate body independent of any Department. Sections 5 to 13 provided it with a broad range of functions primarily in relation to the oversight of electoral matters in the UK. Its aim, in essence, is to ensure the integrity of and public confidence in the democratic process.

However, the mandate set by the Government in the legislation was unintentionally broad and ultimately far wider than originally envisaged. The commission sees its function as ranging from the regulation of political donations and expenditure by political parties through to the promotion of greater participation in the democratic process and responsibility for electoral policy review. That is a very extensive remit for a body that, according to the figures on its website, has only six commissioners, one chief executive, an executive team and an employee force of fewer than 200 people.

After the enactment of PPERA, several years passed before the problems associated with the breadth of the remit became apparent. The commission itself, in a report that it published on PPERA in 2003, queried the extent of its role and whether it had sufficient powers to ensure that there was compliance with the Act. By the start of 2007, the problem had become so acute that it was hampering the commission in its work.

The 11th report by the Committee on Standards in Public Life, entitled “Review of the Electoral Commission”, was published in January 2007 and attracted considerable press coverage. While commending the work of the commission to date, it noted rather alarmingly:

“Evidence received by the Committee strongly suggested that it has been less successful in acting as an effective and strategic regulator in a manner which ensures public trust and confidence. The root of this, from the evidence we have received, appears to lie in the Commission’s interpretation of its regulatory mandate in PPERA and, in consequence, its overly passive role.”

That criticism of a too-passive approach to its role as regulator has dogged the commission in recent years. Peter Wardle said in evidence to the CSPL:

“The legislation very much puts the onus on the parties to comply and some of the information that we need, which can trigger our investigations, does not come into our possession until such time as the parties do that under the legislation.”

For a regulatory body whose total net operating costs have exceeded £22 million for both 2006-07 and 2007-08, that is a rather depressing perspective on its role as a regulator.

Of more concern, perhaps, was that the Government seemed to support that passive role when only 18 months ago Lord Falconer stated in evidence for the same CSPL report:

The Electoral Commission’s role, as set out by PPERA, was not to investigate. It was simply to be a recipient of information. They were in a sense exactly the same as the Register of Companies (Companies House).”

The CSPL expressed considerable surprise at the time at those comments. Will the Minister address that issue and tell us why there has been a change of approach from the Government, as welcome as it is? It is important that that is placed on the record.

The explanatory notes to the Bill indicate that the commission has estimated that the additional costs arising as a result of the changes to its powers and sanctions will amount to about £650,000 per annum. Could we please hear from the Minister how likely it is that it will be able to meet those costs from its existing budget? Details on the budget would be helpful.

Of more concern is that, once again, the Government are swinging wildly between opposing sides of the argument: from a placid commission to a full-throttled regulator with all the powers needed to enter people’s homes. I do not say that as an indication of a likely approach that I have received notice of from the commission. Rather, it is an observation of the potential held in the wording of the Bill. A lack of balance runs throughout the Bill, and I will return to it in coming debates as I attempt to highlight some of the Bill’s inconsistencies.

Our concerns focus on the tendency of the commission to travel the path of least resistance and sometimes spread itself so widely on less vital issues that it has been left wanting when faced with larger problems. I would like to take this opportunity to quote from the submission of my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) to the CSPL in June 2006. It adds considerable weight to what I am saying. He stated:

“We have concerns that the Commission may have attempted to do too much, such that it has spread itself too thinly and failed to deliver on inflated expectations of what an ‘independent electoral watchdog’ should achieve. This problem of ‘mission creep’ is not unique to the Commission and has affected other public sector  agencies...Although the Commission has a statutory function to review and issue reports on matters relating to elections, it has produced an excessive flurry of investigations into every single aspect of the electoral system. We are concerned that the Commission may have adopted the institutional mindset of ‘change for change’s sake’.”

I will give one more short excerpt. My hon. Friend continues:

“We would suggest that the Commission has interpreted its remit to believe that elections must be ‘modernised’ as an end in itself. RPA2000, PPERA, and successive legislation, have created an institutional instability in the electoral system.”

My hon. Friend’s comments are just as relevant today.

“In a classic example of public choice theory in action, these reviews have resulted in the conclusion that the Commission should have a bigger budget and more power. ‘The need for the Commission to take on new functions has been pressed on us...We recognise that now a central electoral body exists, there is an inevitable logic in locating certain central functions with the Commission.’ Mirroring this trend of constantly seeking to expand its role, the Commission’s expenditure has spiralled from £7 million in 2001-02 to £26 million in 2006-07.”

That has been a common feature of the commission’s performance to date. It bemoans its lack of powers, yet only 29 people have been prosecuted for crimes under PPERA. Compare that with the 400-plus cases of alleged electoral fraud that have apparently occurred in the same period, and one begins to get the impression that better utilisation of what the commission has is needed as much as more powers.

Furthermore, the commission’s predisposition—albeit somewhat reduced in recent months, it has to be said—to include itself in non-regulatory or enforcement activities such as the promotion of the electoral system and encouraging people to vote has, in the view of many, detracted significantly from its role as a guardian of the electoral system’s integrity. As my hon. Friend the Member for Chichester so accurately stated in his submission to the report of the CSPL:

“The first area where I think a mistake has probably been made was in asking the Electoral Commission to take responsibility for voter participation. I am confident, in retrospect, the majority of people think that it should not have...I think that is the responsibility of political parties. If people are not interested in politics it is our fault, primarily.”

I presume that “our” refers to politicians.

Yet that element of the commission’s work is supported by a ring-fenced £7.5 million, or some 34 per cent. of last year’s costs—more than one third of its expenditure. I believe that those figures are right, but I would appreciate it if the Minister could confirm that that is the case. The Government’s original rationale for placing this function within the remit of the commission was alarm at the continuing drop in turnout at various elections. While the reasons individuals do not vote are highly subjective, it is surely a political party issue rather than a commission one. As my hon. Friend the Member for North-East Hertfordshire the then shadow Secretary of State for Constitutional Affairs, noted in the Committee on Standards in Public Life’s report,

“I think it is an important issue, but I think someone else should be doing it”.

Even more damning is the suggestion from the CSPL that the evidence of any impact, in terms of increased turnout in elections on the back of the Commission’s work, is at best mixed and some would argue negligible.

So this is the commission we find ourselves confronted with today. We accept the need for an effective commission and recognise it as a necessary and vital part of the modern electoral fabric. It is its duty to act as a watchdog of party financing and electoral administration. If we get it correct, people will have faith in the system and its integrity and we shall not undervalue the role of promoting the integrity of the system when assessing people’s propensity to vote. In other words, if I do not trust the system, why should I bother voting? That is the fundamental issue that the Government consistently shirk in the Bill, in which they continue, wrongly, to put turnout on the same level as countering fraud. The priority needs to be to refocus the commission, and that is what the amendment and new clause 1 sought to do, which is why we will be coming back to it at later stages.

What we have got, through a combination of deficiencies in the PPERA, is a mandate for the commission that is too weak in some cases and too broad in others. This has left us with an enforcement body that has fallen short of fulfilling both its potential and its important statutory duties. We will want to ponder where we have got to before the Bill is considered on Report, but I am not satisfied that we are yet where we want to be. It would be helpful if the Minister spent a little time analysing how we got to this position. Was it poor management, a poor legal structure, or a bit of both? Is he confident that the Bill, following the implementation of clause 1, is going to deal with the problem?

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice 5:30, 11 November 2008

I may just have glimpsed a shadowy ghost of the consensus that I have been so avidly seeking throughout today. Apart from the occasional moment when the hon. Gentleman strayed into some general partisan comments about the overall nature of the Bill, there is a large measure of agreement on a lot of the substantive issues. Before I set out answers to some of his questions and our case for the clause, I point out that it was remiss of me not to address a couple of the important questions that he asked earlier.

On the difference between “necessary” and “sufficient”, although the hon. Member for Cambridge had a good go at it, I try never to avoid anything and I can tell the Committee that “necessary” will detail what is required in cases where the Bill requires clear steps to be taken, while “sufficient” will provide what needs to be done as a bare minimum when the nature of the obligation may be less clear. I hope that that clarifies that important point. Let me clarify a further point. In the hon. Gentleman’s previous remarks, he seemed to suggest that my comments about “complex” and “various” in relation to the previous group of amendments referred to the Bill. In fact, they referred to the 2000 Act, which has been in effect for eight years, so that was the point that I was making.

Clause 1 is an important part of the Bill for a lot of the reasons that the hon. Member for Huntingdon has set out. It emphasises that the commission has a role in monitoring compliance with the controls, but it also goes further and sets out the commission’s role in securing compliance. That will make it clear that a key part of the commission’s monitoring role is to investigate allegations or suspicions of regulatory failure, and to consider whether to take further action.

The clause also enables the commission to prepare and publish guidance setting out its opinion of what is required under the legislation referred to—section 145(1) of PPERA. The clause clarifies the commission’s role by making it clear that it has the responsibility not only to check whether relevant restrictions and requirements are being complied with, but to take the steps it considers necessary to ensure that the rules are complied with, and to deter non-compliance. The clarification of the commission’s role is intended to address a recommendation of the Committee on Standards in Public Life.

The 2007 report on the Electoral Commission drew on evidence received by the committee that suggested the commission’s interpretation of its regulatory mandate in the 2000 Act had led it to take a passive approach. In turn, that made it a less effective regulator and led to less public trust and confidence. The committee therefore recommended that the 2000 Act should be amended to make it clear that the commission has a duty proactively to investigate allegations or suspicions of failures to comply with the regulatory framework.

In particular, the committee recommended that the word “monitor” in section 145 of the 2000 Act should be replaced by the word “regulate”. However, we believe that such an amendment would not sufficiently achieve the underlying intention of the committee’s recommendation, which is to place greater emphasis on the active steps that the commission may take in order to perform its role. The wording of the clause will bolster the commission in performing its role and will place the correct emphasis on the importance of an active approach to regulation. We believe that that will result in a strengthened regulator. It is essential that the commission and those whom it regulates be in no doubt about the extent of the commission’s role as a regulator of party funding and campaign expenditure.

The second aspect of the clause relates to the commission’s ability to publish guidance, and is necessary to ensure that regulated individuals and political parties fully understand what they are required to do, or avoid doing, to comply with party funding legislation. We recognise that party funding rules are complex and that those charged with compliance are often volunteers who may lack financial skills. The clause is intended to reflect that. Such guidance might cover frequently asked questions, or it might set out some scenarios on novel circumstances and steps that the commission would expect a regulated individual to take to comply with regulatory requirements in those circumstances. The clause also allows the commission to produce best practice guidance or pro formas that parties or regulated donees might like to use to submit returns to the commission. The intention of this part of the clause is to ensure that the commission takes an active role in helping those whom it regulates to comply and avoid inadvertent breaches of the rules.

The hon. Member for Huntingdon asked various questions about the budget and was interested to know whether the commission would have sufficient funding to enable it to discharge these new duties. He will be aware that the commission is funded directly from the consolidated fund, after the Speaker’s Committee, about which the Committee has now been much enlightened, has approved its estimates. I am happy to write to him  with the details of that budget. Indeed, I am sure the commission will be happy to let him know directly what its views are about the adequacy of its funding.

The hon. Gentleman spent a reasonable amount of time asking how we got to this position. I do not want to exhaust the Committee’s patience by providing a blow-by- blow account, but it is not surprising that in an area as complex and important as this, the legislation needs to be constantly revisited to ensure that it is appropriate to the circumstances. I do not need to remind the Committee of the various issues that have arisen from all parts of the House in recent years, which have suggested that we needed to take a fresh look at this subject. I have no doubt that, no matter how important and useful the Bill is in achieving its objectives, we will revisit these issues in legislation.

Incidentally, it has always been clear that, since the 2000 Act, the role of the commission should be that of a regulator. Section 145 of that Act makes it clear that the commission’s role is to monitor compliance—clearly, that is a regulatory role—and that it should do so by taking “appropriate steps.” That is a clear nod towards investigation and possible sanctions. That is not a new role, but it does need refocusing, as the hon. Gentleman clearly stated.

The clause is an important part of an important Bill and I hope that the Committee will support its inclusion.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.